R v. OBODDAE

Korsah C.J. delivered the judgment of the court.

(After stating the facts his lordship proceeded:-)

It will be observed that apart from the statement of the appellant to the effect that deceased followed him to his (appellant's) room, no other witness has testified that the parties left the yard at any time prior to the deceased's crying out that he had been stabbed. Furthermore, the allegation of the appellant that deceased followed him to the room alleges merely that deceased grasped him (the appellant) with both hands. There is no evidence of any fight in the room, even if the appellant's version were accepted.

On appeal to this Court, however, Counsel for appellant has raised an important question of law, which had obviously been overlooked at the trial. Neither Counsel for the defence, nor Counsel for prosecution, mentioned it during the proceedings, and. it is obvious that the learned Judge did not give consideration to it in the course of the proceedings or in the summing-up. It is raised in the 1st ground of the additional grounds of appeal, and is as follows:

"That the wife of appellant was not a compellable witness and the learned Judge should not have allowed her to be called by the prosecution."

This ground is based on the common law rule, which in Mary Grigg’s Case ((1660) T. Raym, 83 E. R.1) was stated thus. A wife cannot be admitted at common law to give evidence against her husband, or vice versa, in any indictable crime other than treason. And in [p.439] R.v. Brittleton ((1884 12 Q.B. 266), upon a trial of a married woman jointly with another person for larceny of the property of her husband, the husband was called as a witness against his wife. It was held that the evidence of the husband was improperly received, and the conviction which had taken place, founded upon it, was bad against both prisoners.

To this rule, however, there have been important exceptions, e.g. (a) Treason (Griggs' Case) and (b) where the crime is one of violence, and affects the person of wife or husband (The Lord Audley's Case (123 E. R. 1140)).

It will be observed that the common law rule was restricted to persons legally married, and has been modified by various English statutes, e.g. Criminal Evidence Act, 1898. The law in this regard, applicable to this country, is contained in section 122 (1) of the Criminal Procedure Code which reads:

“In any enquiry or trial the wife or husband of the person charged shall be a competent witness for the prosecution